An Uncompleted Competency Evaluation Does Not Bar a Parent’s Testimony Absent Evidence of Testimonial Incapacity

Introduction

This abuse-and-neglect appeal concerned whether a parent’s testimony could be used at adjudication and disposition when the circuit court had ordered, but never received, a competency and parental-fitness evaluation. Petitioner Mother C.H. challenged the termination of her parental rights to T.S., L.L.-E., and C.T. and the termination of her custodial and guardianship rights to P.P.

The Department of Human Services (“DHS”) alleged that the petitioner failed to provide adequate food, education, medical care, and supervision. It also alleged that substance abuse or untreated mental-health conditions produced erratic conduct that endangered the children. Although the circuit court ordered an evaluation and later appointed a guardian ad litem for the petitioner, the evaluation was not completed because she did not cooperate.

The Supreme Court affirmed, holding that an outstanding psychological or parental-fitness evaluation does not itself establish that a person is incompetent to testify. Under Rule 601 of the West Virginia Rules of Evidence, testimonial competency is presumed unless the witness lacks relevant knowledge, the capacity to recall, or an understanding of the duty to testify truthfully.

Factual and Procedural Background

• In September 2024, the DHS filed an abuse-and-neglect petition alleging inadequate food, supervision, education, and medical care.
• Law enforcement encountered the petitioner behaving erratically while caring for young children. During one incident, C.T. was found running along a sidewalk wearing only a diaper, while L.L.-E. wore soiled clothing.
• T.S. reportedly disclosed that the children often had to obtain their own food and sometimes went without dinner.
• The DHS alleged educational neglect, including frequent school absences and L.L.-E. walking alone along a dangerous roadway.
• The petitioner had also been involved in a 2008 proceeding that ended with her voluntary relinquishment of parental rights to another child.

At the October 2024 preliminary hearing, the children’s guardian ad litem requested a competency and parental-fitness evaluation. The circuit court granted the request and directed the DHS to provide transportation. When the evaluation remained incomplete, the court appointed a guardian ad litem for the petitioner.

During the first adjudicatory hearing, the petitioner denied neglect but admitted using methamphetamine in August and September 2024. She also acknowledged that she was not taking prescribed mental-health medication and did not believe treatment was necessary. Other witnesses testified about her erratic and dangerous behavior. The circuit court adjudicated her as an abusing and neglecting parent.

At disposition, the petitioner sought an improvement period. She testified that she had begun counseling and would undergo a psychological evaluation if it were required, but blamed the DHS for her prior failure to complete the evaluation. A CPS worker testified that she had made no meaningful contact with the DHS and had not participated in offered services, including services made available at her home.

The circuit court found no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected and determined that termination was in the children’s best interests. It terminated the petitioner’s parental rights to T.S., L.L.-E., and C.T. Because fourteen-year-old P.P. wanted the petitioner to retain parental rights, the court terminated only her custodial and guardianship rights to that child.

Summary of the Opinion

The Supreme Court rejected the petitioner’s sole assignment of error for three principal reasons:

1. The competency issue was not properly preserved. The petitioner did not identify where she objected to her own competency as a witness or otherwise presented that issue to the circuit court.
2. Her testimony satisfied the governing competency standard. She demonstrated personal knowledge, the ability to recall the relevant events, and an understanding of her obligation to testify truthfully.
3. Independent evidence supported the result. Even without her testimony, the remaining evidence was sufficient to support adjudication and termination.

The Court additionally emphasized that the petitioner could not rely on the absence of an evaluation when her own refusal to cooperate prevented its completion.

Analysis

1. Precedents Cited

In re K.S., -- W. Va. --, 930 S.E.2d 400 (2026)

In re K.S. supplied the standard of appellate review. In abuse-and-neglect appeals, substantive rulings are reviewed for abuse of discretion, factual findings for clear error, and legal questions de novo. This framework required substantial deference to the circuit court’s management of the hearings and its factual assessment of the petitioner’s conduct.

State v. Merritt, 183 W. Va. 601, 396 S.E.2d 871 (1990)

State v. Merritt was the central authority. It establishes that a trial court’s ruling on a witness’s competency is reviewed for abuse of discretion. It also recognizes a strong presumption that every witness is competent. Mental illness, intellectual limitation, or “feeblemindedness” does not automatically disqualify a person from testifying.

Under Merritt, testimonial disqualification is appropriate only when the witness:

• lacks knowledge of the matters addressed;
• cannot recall those matters; or
• does not understand the duty to testify truthfully.

Applying these criteria, the Court found that the petitioner understood and recalled the relevant events, including her drug use, treatment history, mental-health care, and failure to complete the evaluation.

United States v. Odom, 736 F.2d 104 (4th Cir. 1984)

United States v. Odom was cited in accord with Merritt. It reinforces the proposition that witnesses are presumptively competent and that mental impairment alone does not justify exclusion. The citation demonstrated that West Virginia’s approach is consistent with the federal evidentiary tradition.

Noble v. W. Va. Dep't of Motor Vehicles, 223 W. Va. 818, 679 S.E.2d 650 (2009)

Noble v. W. Va. Dep't of Motor Vehicles supplied the preservation rule: nonjurisdictional issues ordinarily will not be considered when raised for the first time on appeal. The petitioner’s brief failed to identify a contemporaneous objection or request for a competency ruling, as required by Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure.

2. Legal Reasoning

Testimonial competency is presumed

Rule 601 of the West Virginia Rules of Evidence declares that every person is competent to testify unless another evidentiary rule provides otherwise. Consequently, the absence of a completed evaluation did not place the petitioner in a state of legal uncertainty that prevented her from testifying. The presumption of competency remained operative unless rebutted by evidence satisfying the Merritt criteria.

Psychological condition and testimonial competency are distinct

The Court implicitly distinguished three different questions: whether a person is competent to testify, whether the person has mental-health or substance-abuse problems, and whether the person is fit to parent. An evaluation relevant to parental fitness or psychological treatment does not automatically decide whether the person can perceive, remember, and truthfully relate events in court.

The appointment of a guardian ad litem was not dispositive

The circuit court’s appointment of a guardian ad litem for the petitioner was a protective procedural measure, not an adjudication that she lacked testimonial competency. Likewise, the earlier order directing an evaluation showed concern warranting investigation, but it did not overcome Rule 601’s presumption.

The petitioner’s testimony showed functional capacity

Her testimony addressed matters within her personal knowledge. Nothing indicated that she could not remember the relevant events or understand the oath. Contradictions between her account and other evidence concerned credibility and weight, not competency. A witness may be inaccurate, evasive, or contradicted without being legally incompetent.

A party cannot benefit from obstructing the ordered evaluation

The Court noted that the evaluation failed to occur because the petitioner refused to cooperate. It therefore treated any complaint about the absence of the evaluation as waived. This prevents a litigant from frustrating a court-ordered process and later using the missing result as a basis for reversal.

Independent evidence supported adjudication and termination

The decision was not dependent solely on the petitioner’s admissions. Testimony from CPS personnel and other witnesses established deficient supervision, inadequate provision of necessities, educational neglect, and dangerous behavior. Her failure to participate in services also supported the finding that the conditions could not be substantially corrected. Thus, even excluding her testimony would not have undermined the evidentiary foundation for the circuit court’s order.

Impact on Future Cases

• Mental illness does not equal testimonial incompetency. Courts must evaluate the witness’s actual capacity to know, remember, and testify truthfully.
• Pending evaluations do not suspend Rule 601. An ordered but incomplete psychological or parental-fitness evaluation does not itself bar testimony.
• Competency objections must be preserved. Counsel should object in the trial court, identify the specific impairment, and request an express ruling.
• Protective appointments are not competency findings. The appointment of a guardian ad litem may reflect caution without proving that the represented person is unable to testify.
• Noncooperation carries appellate consequences. A party who prevents an evaluation from occurring will face difficulty arguing that the missing evaluation requires reversal.
• Independent proof remains important. Abuse-and-neglect findings supported by witnesses, records, and service history are less vulnerable to challenges directed at a parent’s testimony.

The decision does not authorize courts to ignore genuine evidence of testimonial incapacity. If a witness cannot understand questions, recall events, or appreciate the duty of truthfulness, a competency inquiry may still be required. The ruling instead confirms that concern about mental health, without evidence tied to these functional abilities, is insufficient.

Complex Concepts Simplified

Adjudication

The stage at which the court decides whether abuse or neglect occurred and whether the parent is an abusing or neglecting parent.

Disposition

The later stage at which the court decides the appropriate remedy, such as an improvement period, guardianship, or termination of parental rights.

Testimonial competency

The basic legal ability to testify: knowing something relevant, being able to remember it, and understanding the obligation to tell the truth.

Parental fitness

A parent’s practical ability to provide safe and adequate care. It is separate from competency to testify.

Preservation of error

The requirement that an issue ordinarily be raised in the trial court before it can be argued on appeal.

Abuse of discretion

A deferential standard under which an appellate court reverses only when the lower court’s decision exceeds the range of reasonable choices.

Clear error

A standard under which factual findings are upheld unless the appellate court is firmly convinced that a mistake occurred.

Improvement period

A court-supervised opportunity for a parent to address the conditions that led to abuse or neglect.

Conclusion

In re P.P., T.S., L.L.-E., and C.T. confirms that testimonial competency is a functional inquiry governed by Rule 601 and State v. Merritt. An ordered but uncompleted psychological evaluation, mental-health concerns, or the appointment of a guardian ad litem does not by itself disqualify a parent from testifying.

Because the petitioner did not preserve a competency objection, displayed the required testimonial capacities, prevented completion of the evaluation, and was adjudicated and subjected to termination on substantial independent evidence, the Supreme Court found no abuse of discretion and affirmed the circuit court’s order.